Citation Nr: 0810819
Decision Date: 04/02/08 Archive Date: 04/14/08
DOCKET NO. 05-28 985 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to an initial rating in excess of 20 percent
for type II diabetes mellitus (diabetes).
2. Entitlement to service connection for skin growths on the
body and head (skin growths) as a result of exposure to
herbicides.
3. Entitlement to service connection for a right adrenal
gland adenoma as a result of exposure to herbicides (also
claimed as secondary to post-traumatic stress disorder
(PTSD)).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
R. Morales, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1966 to
September 1969.
This appeal comes before the Board of Veterans' Appeals
(Board) from a September 2004 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
North Little Rock, Arkansas, which denied the veteran's
claims for service connection at issue in this appeal, and
granted an initial 20 percent rating for service-connected
diabetes.
The appeals for service connection for skin growths and an
adrenal gland adenoma are addressed in the REMAND portion of
the decision below and are REMANDED to the RO via the Appeals
Management Center, in Washington, DC.
FINDINGS OF FACT
1. The evidence shows that the veteran is on a restricted
diet and is prescribed an oral hypoglycemic agent, but his
activities are not restricted and he does not require
insulin.
2. The veteran does not have peripheral neuropathy, diabetic
retinopathy, or other compensable complications of diabetes.
CONCLUSION OF LAW
The criteria for an initial rating in excess of 20 percent
for diabetes mellitus have not been met. 38 U.S.C.A. §§
1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38
C.F.R. §§ 3.159, 4.120, Diagnostic Code 7913 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran contends that he is entitled to an initial rating
in excess of 20 percent for diabetes.
Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist veterans in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt
of a complete or substantially complete application for
benefits, VA is required to notify the veteran and his or her
representative, if any, of any information, and any medical
or lay evidence, that is necessary to substantiate the claim.
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Proper notice from VA
must inform the veteran of any information and evidence not
of record (1) that is necessary to substantiate the claim;
(2) that VA will seek to provide; (3) that the veteran is
expected to provide; and (4) must ask the veteran to provide
any evidence in her or his possession that pertains to the
claim in accordance with 38 C.F.R. § 3.159(b)(1). This
notice must be provided prior to an initial unfavorable
decision on a claim by the agency of original jurisdiction
(AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
Here, the VCAA duty to notify was satisfied by way of a
letter sent to the veteran in April 2004 that fully addressed
all four notice elements and was sent prior to the initial
AOJ decision in this matter. The letter informed the veteran
of what evidence was required to substantiate the claim and
of the veteran's and VA's respective duties for obtaining
evidence. The veteran was also asked to submit any medical
reports he had and any evidence not in the possession of the
Federal government. In essence, he was asked to submit any
evidence in his possession.
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S.
Court of Appeals for Veterans Claims held that, upon receipt
of an application for a service-connection claim, 38 U.S.C.
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the veteran with notice of what information and
evidence not previously provided, if any, will assist in
substantiating, or is necessary to substantiate, each of the
five elements of the claim, including notice of what is
required to establish service connection and that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Here, the veteran received notice regarding disability
evaluations and effective dates in March 2006. The veteran
is challenging the initial evaluation and effective date
assigned following the grant of service connection. In
Dingess, the Court of Appeals for Veterans Claims held that
in cases where service connection has been granted and an
initial disability rating and effective date have been
assigned, the typical service-connection claim has been more
than substantiated, it has been proven, thereby rendering
section 5103(a) notice no longer required because the purpose
that the notice is intended to serve has been fulfilled. Id.
at 490-91. Thus, because the notice that was provided before
service connection was granted was legally sufficient, VA's
duty to notify in this case has been satisfied.
In addition, the duty to assist the veteran to develop the
claim is fulfilled. VA has a duty to assist the veteran in
the development of the claim. This duty includes assisting
the veteran in the procurement of service medical records and
pertinent treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the veteran. See Bernard v. Brown, 4
Vet. App. 384 (1993). The RO has obtained VA treatment
records and private treatment records. The veteran submitted
lay statements and private treatment records. The veteran
was afforded a VA medical examination in August 2004.
Significantly, neither the veteran nor his representative has
identified, and the record does not otherwise indicate, any
additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained. Hence,
no further notice or assistance to the veteran is required to
fulfill VA's duty to assist the veteran in the development of
the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd
281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15
Vet. App. 143 (2001); see also Quartuccio v. Principi, 16
Vet. App. 183 (2002).
The record establishes the veteran was afforded a meaningful
opportunity to participate in the adjudication of the claim.
See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). All
requirements of the duty to notify the veteran and the duty
to assist the veteran are met.
Initial Evaluation for Diabetes
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4.
Each disability must be viewed in relation to its history and
there must be emphasis upon the limitation of activity
imposed by the disabling condition. 38 C.F.R. § 4.1. The
Board attempts to determine the extent to which the veteran's
service-connected disability adversely affects his or her
ability to function under the ordinary conditions of daily
life, and the assigned rating is based, as far as
practicable, upon the average impairment of earning capacity
in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1,
4.10.
If two evaluations are potentially applicable, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating;
otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7. Pertinent regulations do not require that all cases
show all findings specified by the Rating Schedule, but that
findings sufficiently characteristic to identify the disease
and the resulting disability and above all, coordination of
rating with impairment of function will be expected in all
cases. 38 C.F.R. § 4.21. Therefore, the Board has
considered the potential application of various other
provisions of the regulations governing VA benefits, whether
or not they were raised by the veteran, as well as the entire
history of the veteran's disability in reaching its decision.
Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).
In an appeal from an initial rating, such as this one, the
Board must consider the medical evidence during the entire
period since the veteran's claim was first filed. Fenderson
v. West, 12 Vet. App. 119 (1999).
Throughout the rating period on appeal, the veteran is
assigned a 20 percent evaluation for his diabetes, pursuant
to Diagnostic Code 7913. That code provides a 20 percent
rating where the evidence demonstrates that the disability
requires insulin and restricted diet, or; oral hypoglycemic
agent and a restricted diet. In order to establish
entitlement to a 40 percent evaluation, the evidence must
show that the disability requires insulin, restricted diet
and regulation of activities. (Emphasis added.)
The medical evidence shows that the veteran is on a
restricted diet. He reported at his August 2004 VA
examination that his activities were not restricted. He is
prescribed Metformin, an oral hypoglycemic agent, but does
not require insulin. The Board has considered the veteran's
statement that following a restricted diet has a major impact
on his life. While sympathetic to this statement, the Board
finds that a 20 percent rating most accurately reflects the
level of the veteran's disability because a restriction of
activities has not been prescribed by a physician and he does
not require insulin, thus falling short of the requirements
spelled out under diagnostic code 7913.
The Board has also considered whether a separate evaluation
for any compensable complication of the veteran's service-
connected diabetes is warranted here pursuant to Note (1)
following Diagnostic Code 7913. That note instructs the
rater to evaluate compensable complications of diabetes
separately unless they are part of the criteria used to
support a 100 percent evaluation. Noncompensable
complications are considered part of the diabetic process
under Diagnostic Code 7913. At the August 2004 VA
examination, the examiner noted that the veteran did not have
vision problems or peripheral neuropathy. The examiner
opined that the veteran's other medical problems were
unrelated to diabetes. Eye examinations to check for the
complications of diabetes were performed in July 2004 and
July 2005. He was not found to have any eye complications
related to diabetes. A separate evaluation for compensable
complications is not warranted.
The preponderance of the evidence is against the veteran's
claim for a higher initial rating. Because the evidence is
not in equipoise, the provisions of 38 U.S.C.A. § 5107(b)
regarding reasonable doubt are not applicable to warrant a
more favorable result. Therefore, the claim for a rating in
excess of 20 percent cannot be granted.
ORDER
The appeal for an initial rating in excess of 20 percent is
denied.
REMAND
Diseases associated with exposure to certain herbicide agents
used in support of military operations in the Republic of
Vietnam during the Vietnam era will be considered to have
been incurred in service. 38 U.S.C.A. § 1116(a)(1).
The veteran contends that he has skin growths on his head and
body which are the result of herbicide exposure. At an
August 2004 VA examination for diabetes, the veteran was
noted to have some actinic keratosis on his abdomen. The
veteran has not been afforded a VA examination for this
claim, though one is needed. See McLendon v. Nicholson, 20
Vet. App. 79 (2006) (VA must provide a medical examination
when it is necessary to decide the claim).
The veteran contends that a right adrenal gland adenoma is
due either to herbicide exposure or is secondary to PTSD.
The veteran has not been afforded a VA examination for this
claim, though one is needed. See McLendon v. Nicholson,
supra. He should also be notified of the evidence necessary
to support a claim of secondary service connection.
Accordingly, the case is REMANDED for the following action:
1. Additional VCAA notice under 38
U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) must be provided to the
veteran, including a description of the
provisions of the VCAA, notice of the
evidence required to substantiate the
claim, and notice of the veteran's
responsibilities and VA's
responsibilities in developing the
evidence, including what evidence the
veteran is responsible to obtain and
what evidence VA will obtain, and a
request that the veteran provide any
evidence in his possession that
pertains to the claim in accordance
with 38 C.F.R. § 3.159(b)(1).
38 U.S.C.A. §§ 5102, 5103, 5103A (West
2002 & Supp. 2007).
In particular, the notice should advise
the veteran as to the evidence required
to support a claim of secondary service
connection for a right adrenal gland
adenoma.
2. The veteran should be afforded the
opportunity to identify any additional
relevant evidence which is not yet of
record.
3. When the above development is
completed and any available evidence
identified by the appellant is
obtained, the entire claims file must
be made available to the VA
examiner(s). Pertinent documents
should be reviewed.
Skin growths. The examiner should
conduct a complete history and physical
and assign all appropriate diagnoses.
If there is a current diagnosis of a
skin disorder, the examiner should
state whether the skin disorder is at
least as likely as not related to the
veteran's service, including herbicide
exposure in service.
Right adrenal gland adenoma. After any
necessary diagnostic tests are
conducted and reviewed, the examiner
should conduct a complete history and
physical and assign all appropriate
diagnoses. The examiner should state
(a) whether the right adrenal adenoma
is at least as likely as not related to
the veteran's service, including
herbicide exposure in service and (b)
whether the right adrenal adenoma is at
least as likely as not secondary to
PTSD.
4. After completing the above action,
and any other development as may be
indicated by any response received as a
consequence of the actions taken in the
paragraphs above, the claims should be
readjudicated. If the claims remain
denied, a supplemental statement of the
case should be provided to the veteran
and his representative. After the
veteran and his representative have had
an adequate opportunity to respond, the
appeal should be returned to the Board
for appellate review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs